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Judgment
Raghuvir
The owners of house No. 1285, Kothagraharam, Vizianagaram are aggrieved for their application (A. B. No. 76 of 1970) for eviction against the tenant for their (own requirement,) was dismissed by the Rent Controller on 31-3-1971. The Subordinate Judge at Vizianagaram dismissed the appeal (C.M.A. No. 22 of 1971) on 29-6-1976 holding the four daughters of the Revision Petitioners (studying with Oriya Medium at Jeypore) cannot join any school at Vizianagaram and Exs. A. I and A. 2 the two letters by the tenant expressing "a sort of willingness" cannot be read as "undertaking" by the tenant and "in the present case the petitioners (landlords) are living in a different State and their requirement of the scheduled premises is not bona fide as the petitioners'' children are studying in a different State and the second petitioner (landlord) has no independent source of living apart from his monthly pension Rs, 100/-". The revision petition is lodged u/s 22 of Act XV of 1960 for the High Court to "examine the records for satisfying itself as to the legality, regularity or propriety of the order or proceeding and pass such orders as it thinks fit." What are the powers of the High Court ? The debate centred round the meaning of the word "propriety" and its implication.
It is argued on behalf of the tenant that the appellate authority determined the facts holding the premises is not "required" by the owners and such a finding it is argued is conclusive determination of the issue and this Court cannot review the evidence exercising me revisionary jurisdiction u/s 22 of this Act. Divergent views have been expressed in the cases decided by this Court. The learned counsel for the revision petitioners argued it is "sate" to decide the questions of fact by this Court as has been done is some cases. The learned counsel for the tenant in opposition to that course relied on the case B. Nagaswamy Rao Vs. G. Ramachandra Rao 1975 (1) An. W.R. 258 wherein it was held it is not open for this Court to go into the question of bona fides afresh in a revision u/s 22 of the Act. The following passage in that judgment speaks for that view.
The question whether the requirement of a landlord is bona fide or not is essentially a question of fact which has to be determined with reference to the evidence, circumstances and properties. This is a finding of facts which cannot be interfered within a revision u/s 22 of the Act. But the authorities below had taken into consideration all the aforesaid facts and came to me conclusion that the requirement of the respondent was bona fide. I am therefore unable to interfere with this finding in revision.
In Kanchana Kesava Rao vs. Kasuri Subbaraju And Another 1956 A.W.R. at page 87, Viswanatha Sastry, J speaking for the Divisional Bench observed :
"Legality" and "regularity" are well understood terms and well recognised grounds of Judicial interference ON an appeal or revision An order is illegal if it is opposed to any enactment or any rule having the force of law. It is irregular if the procedure followed is in Violation of the principles of natural justice and fair play. The term "propriety" is, however, of wide import and there might be honest differences of order even though it is in conformity with the law and within the powers of the authority making the order.
In the above case the implication of the word "propriety" was not made clear. In the same volume at page 1079 Vemuri Ethirajamma vs. Nune Rughavulu Setti And 3 Others 1966 A.W.R. 1079 Satyanarayana Raja, J. considered the similar language containing the expression "propriety" occurring in section 12B of the Act XXV of 1949 as "wide enough" to cover both questions of law and fact and said those powers "go far beyond the revisional jurisdiction strictly so called".
In Devabhakatuni Ramaiah vs. Venus Picture Palace 1966 (2) A.W.R. 30 (short notes) Venkatesam, J, considered the powers u/s 22 of Act XV of 1960 and held the High Court could go into the questions of law and facts in order to "satisfy" the legality, regularity or propriety of orders passed by the lower tribunals.
The facts in Pathan Khan vs. Syed Pasha 1976 (1) A.W.R. 80 (Punnaiah, J) reveal the facts were reviewed u/s 22 of Act of 1960.
In Mahboob Bi vs. Alvala Lachmaiah 1962 (II) A.L.T. 261 : 1962 (II) A.W.R. 148 Munikannaiah, J. considered the facts of the case from the stand-point of "natural justice" and "fair-play" u/s 22 of the Act, reviewed the evidence in the case. In Zabeda Begum And Others vs. S. Krishna Reddy 1970 (2) A.P.L.J. 27 (Short notes) Madhava Reddy, J. "set aside" the finding by the appellate authority and observed :
The High Court is entitled to examine the record and satisfy itself not merely about the legality or regularity but also about the propriety of the order passed by the Subordinate Judge. The finding arrived at by the learned Subordinate Judge is therefore set aside.
In [Moti Ram vs. Suraj bhan and others] AIR 1960 S.C. 635 was a case under Act III of 1949. u/s 15 of that Act which is akin to section 22 of 1960 Act, the Supreme Court held the power was "wider" than the power in section 115 of the CPC and enabled the High Court to investigate facts.
In (Nanak chand vs. Inderjit and others) 1969 All India Rent Control Journal 881 (para 5), the Supreme Court once again considered the "power" of the High Court under Act III of 1949 and observed ;
It was contended ... the High Court had no jurisdiction to go into the question whether the premises already in occupation of the landlord was insufficient. It was pointed out that the Appellate Authority had examined the evidence and found that from the point of view of social habit and the status and nature of his duties, the landlord could not reasonably require more accommodation than the three rooms in addition to the bath room. The High Court has, however, taken a different view and held that the premises already occupied by the landlord was sufficient. We are unable to accept the argument that the High Court had no jurisdiction to reverse the finding of the appellate Authority on this point. The revisional power conferred on the High Court under S. 15 (5) of the Act (3 of 1949) is wider than that conferred by S. 115 of the Civil Procedure Code. Under S. 15 (5) of the Act the High Court has jurisdiction to examine the legality or propriety of the order under revision and that would clearly justify the examination of the finding by the authorities about the requirement of the landlord under S. 13 (3) (a) (i)...
(emphasis supplied).
Having regard to the preponderance of authority of this court and the decisions of the Supreme Court, it is not necessary further to consider cases of other High Courts to hold this Court has the power to review facts.
P.A. Narsimharao, the owner of the house, purchased on 5-2-1955 the tiled house No. 4.1 36/1285, Kothagraharam. The house was let out to Vanka Ramachandra Rao (the respondent) in 1967 for Rs. 60 a month Narasimha Rao retired while working at Jeypore on 14-1-1970 from service in Orissa Government and now gets a pension of Rs. 100 a month. On 22-1-1970 his landlord requested to vacate the house in his occupation at Jeypore by letter Ex. A. 3 and reminded him on 29-4-1970 (Ex. A-5). On 24-11-1970 (Ex. A-4) Narasimharao in his turn requested his tenant-Ramachandra Rao to vacate the house for he intended to settle down at Vizianagaram. The tenant in vain tried to induce by enhancement of rent from Rs. 60 to Rs 70 and avoid eviction. In letters Ex. A-1 (dated 4-5-1970), Ex. A-2 (dated 4 6-1970) the tenant expressed "some sort of willingness" to vacate but failed to do so.
In the enquiry it was revealed the landlord''s eldest son is employed in Hindustan Aeronautics Ltd. Sunabeda as Assistant Engineer on Rs. 600. His second son is a student in the Rourkela Engineering College. His four daughters are studying at Sunabeda in Oriya medium. His two other daughters were married. At Rayagada he purchased a site in Orissa. He had no house at Jeypore. The tenant who disputed the need of the landlord alleged the real motive for the eviction proceedings was the house owner''s wife (Revision petitioner No. 1) wanted Rs. 90 for the premises. That allegation was found not true by the tribunals on 8th October 1970.
Where the children should be educated is a question which is for the parents to decide. The pension of Rs. 100 (on the assumption it is relevant to consider) may be meagre but his son is found "affluently" employed. The "requirement" cannot be said on the above facts not bona fide. The orders of the Rent Controller and the Subordinate Judge in Appeal have not "properly" determined the issue of "requirement" of the landlord. Therefore the two orders are set aside. The revision petition is allowed with costs. The learned counsel for the tenant requested for time of three months for vacating the premises which is not demurred by the counsel for the landlord. The tenant to vacate the premises on or before the expiry (sic) three months from to-day.